General These terms and conditions govern the sale of Products and the provision of services by SMP Technology Inc. These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice is hereby given. Acceptance by buyer is limited to and conditioned upon Buyer’s assent to these terms and conditions. Neither SMP Technology Inc.’s commencement of performance or delivery shall be deemed or constituted as acceptance of buyer’s supplemental or conflicting terms and conditions. Buyer’s acceptance of the Products and/or Services from SMP Technology Inc. shall be deemed to constitute acceptance of the terms and conditions contained herein. These terms and conditions may only be waived or modified in a written agreement signed by and authorized representative of SMP Technology Inc.
Quotations and Documentation
Quotations are always made without obligation and are valid for not more than 30 days from the date the quotation is made by SMP Technology Inc. unless specifically stated otherwise in the quotation.
Orders shall be submitted to SMP Technology Inc. in writing and shall specify the products and delivery date desired by the buyer. All orders shall be subject to approval and acceptance in writing by a duly authorized agent of SMP Technology Inc. SMP Technology Inc. may refuse to accept any order. SMP Technology Inc. may designate certain products as non-cancelable, non-returnable ("NCNR"). An order acknowledgment shall be directed by SMP Technology Inc. to the Buyer indicating SMP Technology Inc.’s interpretation of the order and SMP Technology Inc.‘s intention to ship as shown on the acknowledgment. It will be the Buyer's responsibility to notify SMP Technology Inc. immediately upon receipt of an order acknowledgment of any discrepancies that may exist; otherwise, the terms of the order acknowledgment shall be binding upon the Buyer. All written quotations shall be valid for thirty (30) calendar days from the date of quotation.
Delivery and Shipment
SMP Technology Inc. will ship all orders F.O.B. shipping point, no freight allowed, and by such means as SMP Technology Inc. in its discretion, determines to be most feasible; however, SMP Technology Inc. will endeavor whenever practical to comply with the Buyer's request with regard to the mode of shipment and routing. All transportation charges for air shipments shall be at customer's expense. Shipping dates on the order acknowledgment are estimated and SMP Technology Inc. shall not be liable for loss or damage due to delay in manufacture or delivery resulting from any cause. In no event shall SMP Technology Inc. be liable to Buyer for consequential or special damages due to any cause. Delivery of a quantity, which varies from the quantity specified, shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installments. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than five (5) days after delivery, after which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within five (5) working days of receipt of the Products. In the event of an over shipment, Buyer shall have the option to return the Products to SMP Technology Inc. at SMP Technology Inc.’s expense or alternatively, Buyer may elect to retain the Products (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items.) Any Product returns shall be subject to compliance with SMP Technology Inc.’s Return Merchandise Authorization ("RMA") policies and procedures as well as a restocking charge equivalent to 50% of the value of such Product as specified in SMP Technology Inc.’s invoice to Buyer. Returned Products must be in the original packaging and conform to minimum package quantity ("MPQ") requirements. Products not eligible for return shall be returned to buyer freight collect.
All sales, use and other taxes, federal or state, payable on account of a sale, shipment or delivery shall be for the account of and paid by the buyer.
Shipping Liability and Claims
SMP Technology Inc. shall not be liable for damages to or loss of any SMP Technology Inc. products occurring after delivery by SMP Technology Inc. to a carrier for shipment. All claims for damages or losses in transit shall be asserted directly against the carrier by the customer. Notwithstanding any other provision to the contrary contained herein, it is understood and agreed that SMP Technology Inc. shall have the right, but not the obligation, at the Buyer's sole expense, to insure any shipment of SMP Technology Inc. products against loss or damage in transit.
Returns and Cancellation of Orders
Certain items are non-cancellable and non-returnable including but not limited to, less than full size pin headers, female headers, connectors with added options, custom connectors, cable assemblies, power supplies and large quantity blanket orders and special reduced price quotations.
Orders which have been accepted by SMP Technology Inc. may be canceled in whole or in part only with the written consent of SMP Technology Inc. and the payment by the Buyer to SMP Technology Inc. of a cancellation charge which will be assessed by SMP Technology Inc. on the basis of the processing stage of the order at the time of cancellation. No order may be canceled after shipment. Requests for extensions of shipment dates may be treated as order cancellations by SMP Technology Inc.
Warranty SMP represents and warrants to Buyer that its products are free from defects in material and workmanship under normal use and service. Standard connectors, cables, components and power supplies shall be free from defects in material and workmanship for a period of 1 year following the effective date of shipment from our facility. The products shall conform to SMP specification(s) for products that are in place at the time of delivery. SMP Technology Inc.’s sole liability for any breach of warranty under this paragraph, confirmed by SMP Technology, shall be to repair or replace, at its option and at its expense, the defective or nonconforming products and/or components to a condition as warranted.
Disclaimer of Warranty
Except as written in the paragraph above, SMP Technology Inc. makes no warranty express or implied regarding its products and components .All implied warranties, including , but not limited to, the implied warranties of merchantability and or fitness for a particular purpose, are hear by disclaimed. In addition, SMP Technology expressly disclaims any warranty obligations in those instances where failures resulted from the modification of the products and or components by the Buyer or its customer, improper handling, use or installation of the products and or components by Buyer or its customers, or any other cause beyond the control of SMP Technology Inc.
Claims for defective products, shortages, delays, or failures in shipment or delivery, or for any other cause, shall be deemed waived and released by Buyer unless made in writing within five (5) days after arrival of said products. A Return Material Authorization from Seller shall be required for any product returned to Seller. No claims will be considered for goods altered, defaced or upon which any additional operation has been performed, and no claims will be allowed for labor, rework, transportation or other expense incurred by the Buyer, without prior written approval of the Seller. If the products fail to meet the warranty specified in the paragraph on express product warranty above, Buyer shall not return them but shall notify Seller within the said five (5) day period, stating full particulars in support of his claim, and Seller will, at its option, either replace the products upon return of the defective or unsatisfactory material or adjust the matter fairly and promptly. SMP Technology Inc. does not warrant or guarantee the technical advice given by it in connection with the installation or the use of products sold hereunder. Buyer should test each and every product within its application to assess the product’s suitability to Buyer’s application
Limitation of Liability
In no event will the SMP Technology Inc. or its officers, employees, affiliates, or distributors be liable to Buyer or to any third parties for the cost of procuring substitute products and/or components, lost profits, loss of use, loss of data, installation costs or any incidental, consequential, indirect or special damage arising out of any performance of this warranty, regardless of whether such damages are based on tort, warranty, contract or any other legal theory, even if advised the possibility of such damages.
SMP Technology’s sole liability for any breach of warranty under this paragraph, confirmed by SMP Technology Inc. shall be to repair or replace, at its option and at its expense, the defective or nonconforming products and/or components to a condition as warranted.
Buyer agrees to hold SMP Technology Inc. harmless from, defend and indemnify SMP Technology Inc. against damages, claims, and expenses arising out of subsequent sales of SMP Technology Inc. goods or products containing components sold by SMP Technology Inc. and based upon personal injuries, deaths, property damage, lost profits and any other manners for which buyer, its employees or subcontractors, or any third party are or may be to any extent liable, including, without limitation, penalties imposed by the Consumer Product Safety Act and liability imposed upon any person pursuant to the Magnuson-Moss Warranty act as now in effect of hereafter amended. The warranties and remedies provided for herein by SMP Technology Inc. are available only to Buyer and shall not extend to any other person.
Changes in Specifications or Drawings
All additional expense to SMP Technology Inc. due to changes in specifications or drawings which have been approved by SMP Technology Inc. and for any products furnished in addition to that herein specified, shall be added to the purchase price and paid by Buyer.
Seller's Right of Possession
SMP Technology Inc. shall have the right, in addition to all others in may possess, at any time, for credit reasons or because of Buyer's default or defaults, to withhold shipments, in whole or in part, to stop products in transit and redirect the same, either before or after delivery and to retake into general inventory all products which may be stored with SMP Technology Inc. for buyer's account, without the necessity of taking any other proceedings. Buyer acknowledges and consents that all products so withheld, stopped in transit, or retaken after delivery shall become the absolute property of SMP Technology Inc. provided that Buyer is given full credit therefore.
Payment Terms and Revocation of Credit
Invoice payment terms shall be Net 30 days from invoice date unless otherwise agreed upon in writing by SMP Technology Inc. and Buyer. After 60 days, one and one half percent (1-1/2%) per month may be added to any balance owed, and in event of default reasonable collection charges and/or attorney fees charged. SMP Technology Inc. retains a purchase money security interest in the Products delivered to Buyer, and in their accessories, replacements, accessions, proceeds and products, including accounts receivable (collectively, the "Collateral") to secure payment of all amounts due under this Agreement. Buyer’s failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give SMP Technology Inc. all rights of a secured party. If buyer fails to pay any amount when due, Seller shall have the right to repossess and remove all or any part of the Collateral from Buyer, but not from buyer’s Customers. Any repossession or removal shall be without prejudice to any other remedy of SMP Technology Inc. hereunder, at law or in equity.
SMP Technology Inc. reserves the right at any time to revoke any credit extended to Buyer because of Buyer's failure to pay for any products when due or for any other reason deemed good and sufficient by Seller, and in such event all subsequent shipments shall be paid for on delivery.
Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by SMP Technology Inc. to transfer, create, perfect, preserve, protect and enforce this security interest.
SMP Technology Inc. shall maintain insurance coverage as required by applicable law.
(a) The parties agree that any and all disputes, claims, or controversies arising out of or related to the validity, interpretation or performance of this Agreement for all Products and Services performed, shall be resolved pursuant to this Section and that the validity, interpretation and performance of this Agreement for all Products delivered, and all Services performed hereto, shall be governed by, and construed in accordance with, the internal law of California , without giving effect to conflict of laws principles. Both parties agree that any action, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to any claimed breach, shall be commenced in a state or federal court located in the State of California, and both parties expressly acknowledge that personal jurisdiction and venue shall lie exclusively and is properly in California. Both parties further agree that any action, demand, claim or counterclaim relating to the validity, interpretation and performance of this Agreement, or any other matter between the parties, shall be resolved by a judge alone in California, and both parties hereby waive and forever renounce the right to a trial before a civil jury.
(b) For all disputes to which this section applies and the amount, in the aggregate, of the obligations arising out of this agreement equals or exceeds $250,000, the validity, interpretation and performance of this Agreement shall be governed by, and construed in accordance with the laws of the State of California, without giving effect to conflict of laws principles, and the Federal Rules of Civil Procedure to any dispute.
(c) With respect to all disputes, the provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980 (as amended, replaced or codified from time to time) shall not apply.
This Agreement shall constitute the complete, final and exclusive statement of the terms of the Agreement between the parties with respect to the subject matter of this Agreement and the transactions between the parties and shall not be modified or rescinded, except by a writing signed by SMP Technology Inc. and Buyer. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements, and understandings of the parties with respect to the subject matter of this Agreement. Products furnished and services rendered by SMP Technology Inc. are done so only in accordance with these terms and conditions.